Bangalore District Court
Batman Engineering India Limited vs Durha Constructions Pvt Ltd on 27 November, 2025
1
COM.O.S.27279/2009
0KABC170084662020
IN THE COURT OF LXXXII ADDL.CITY CIVIL &
SESSIONS JUDGE, COMMERCIAL COURT,
BENGALURU (CCH-83)
PRESENT: SRI. VIDYADHAR SHIRAHATTI, LL.M.,
LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE,
BENGALURU.
Com.O.S.No.27279/2009
Dated on this 27th Day of November 2025
Plaintiff Tenova Technologies Private
Limited, formerly at Brigade
th
Software Park, No. 42, 27 Cross,
2nd Stage, Banashankari, Bangalore
- 560 070, Current registered
office : I Thing Techno Campus, A
Wing, 5th Floor, Pokhran Road,
No.2, Behind TCS, Thane West,
Thane, Maharashtra - 400 601,
Represented by its Authorized
Signatory, Mr. R. Rajagopalan.
(By M/s Trilegal- Advocates)
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COM.O.S.27279/2009
//versus//
Defendant Zillion Infraprojects Pvt. Ltd.
(formerly known as Durha
Components Private Limited),
st
having its office at 1 floor, 219/4,
Rama Market, Pitampura, New Delhi
- 110 034.
(By Sri. Ashish Makhija -
Advocate )
Date of Institution of the
12.04.2019
suit
Nature of the suit (suit on
pronote, suit for declaration
Suit for recovery of money
& Possession, Suit for
injunction etc.)
Date of commencement of
20.02.2018
recording of evidence
Date on which judgment
27.11.2025
was pronounced
Total Duration Year/s Month/s Day/s
06 07 15
(VIDYADHAR SHIRAHATTI),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
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COM.O.S.27279/2009
JUDGMENT ON COUNTER-CLAIM
The Plaintiff filed this suit under Oder 7 Rule 1 read
with Section 26 of CPC for claiming following relief:
(i) Pass a decree against the Defendant
and in favour the Plaintiff directing the
Defendant to pay the sum of Rs.
10,88,10,521.96 along with interest @ 15% per
annum being calculated from 21.12.2008, being
the date when the Defendant was due to make
payments, till the date of actual payment of the
entire amount.
2. The Brief facts as per Plaint are as follows:-
The plaintiff is a company incorporated under the
provisions of the Companies Act, 1956 and ins engaged
in the business of providing engineering Service in
India. The Defendant is a company incorporated under
the provisions of the Companies Act, 1956 and carrying
on the business of civil and construction contractors.
The plaintiff and the Defendant entered into a letter of
interest dated 18.12.2006 (LOI), under the terms of
which the date agreed to undertook to execute and
complete the civil, structural, steel and architectural
work in accordance with the specifications and drawings
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COM.O.S.27279/2009
prepared and approved by the plaintiff for the proposed
expansion of Rampura Agauchas Mines Ore
Beneficiation Plant including the modification of the
existing structure/services for M/s Hindustan Zinc
Limited at Bhilwara, Rajasthan. The contract between
the plaintiff and Defendant was Governed by the terms
and conditions mentioned in the LOI signed by the
Defendant indicating its acceptance of the terms set-out
therein. Under Clause 7 of LOI, the Defendant agreed to
complete the execution of the works to the extent at
least 80% within 6½ months from the date of issuance
of the LOI and the balance activity was extendable to a
maximum period of 9 months from the date of issuance
of the LOI.
2.2. According to the clause 2 of the LOI, the contract
was for a total value of Rs. 14,39,31,824/- inclusive of
all taxes, duties, levies except, canvatable service tax
and education cess to be paid by the Plaintiff to the
Defendant as per the actual measured quantities and at
the rates contained in the bill of quantities (BOQ) as
indicated therein. Further, clause 5 of the LOI
categorically stated that the contract sum would be paid
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COM.O.S.27279/2009
by the plaintiff cumulatively once in a calendar month,
as per the certified running bill solely to facilitate the
Defendant to undertake and complete the works. The
Running Account Remittance would be treated as an
advance to be adjusted against final settlement of
accounts as on the date of completion of works.
Pursuant to the terms of the LOI, the item specifications
and drawings were provided by the Plaintiff and
accepted by the Defendant. The plaintiff extended the
period for completion of the Works to accommodate the
request of the Defendant. Accordingly, the Amendment-
1 dated 12.09, 2007 was issued by the Plaintiff to the
Defendant, wherein the Plaintiff agreed to extend the
period for completion of the Works to the extent of
100% on or before 30.11.2007. The LOI was amended
thereafter vide letter dated 16.10.2007, whereby the
Contract sum was revised from Rs. 14,39,31,824/- to
Rs. 18,50,00,000/-. The modified drawings and BOQ
were also provided by the Plaintiff and duly accepted by
the Defendant, according to which on 21 November,
2007 the Contract Sum was further revised to
Rs.24,80,72,545/-. The Defendant commenced
execution of the Works. In spite of express undertakings
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COM.O.S.27279/2009
and obligations in the LOI, the Defendant defaulted in
performing its obligations expressly undertaken to the
detriment of the Plaintiff and in gross violation of the
terms of the LOI. The Defendant failed to mobilize the
requisite resources to perform the said Works to the
quality and schedule requirements as stipulated in the
LOI. Without the consent of the Plaintiff, the Defendant
persistently demobilized the structural fabrication crew
who were engaged at CISF fabrication yard. Despite
several reminders from the Plaintiff the Defendant failed
to achieve the timely execution of Works. On
06.02.2008 the meeting held between the Plaintiff and
the Defendant. The Defendant agreed and undertook to
complete the pending Works by 25.02.2008. Based on
the representations made by the Defendant, the Plaintiff
in good faith made a adhoc payment of
Rs.2,26,00,000/- to the Defendant in order to facilitate
the Defendant to complete the pending Works. But, the
Defendant failed to adhere to its commitments. As a
consequence of the Defendant's failure to complete the
Works, the Plaintiff was compelled to complete the
pending portions of the Works by engaging other sub-
contractors. The Plaintiff has incurred significant costs
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COM.O.S.27279/2009
and expenses in having the Works completed by
engaging third party sub-contractors. Between
December 2006 and February 2008 the Plaintiff has
made a total payment of Rs.34,65,82,935.18 against
the running account bills raised by the Defendant
periodically, pending full and final settlement of
accounts between the Plaintiff and the Defendant. The
payments made to the Defendant includes the
payments made to Defendant's sub-contractors, as per
the directions of the Defendant under the Running
Account Remittance. The plaintiff has received a letter
on 01.07.2008 and 17.07.2008 called upon the
Defendant to the reconciliation statement and
supporting documents in order to determine the
complete measurements and ascertain the final billing.
In spite of repeated reminders, the Defendant failed to
respond to Plaintiff's requests and constantly and
deliberately avoided the reconciliation process. On the
account failure on the part of the Defendant to submit
the reconciliation statement and its failure to attend to
the reconciliation process, the Plaintiff had no option but
to calculate the quantities based on the approved and
as built drawings and draw up the reconciliation
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COM.O.S.27279/2009
statement on its own. Based on the completed
calculation and measurement of Works, it was revealed
that out of the total amounts received by the Defendant
as Running Account Remittance, a sum of Rs.
10,88,10,521.96 was paid in excess of the amounts
legitimately payable to the Defendant for the portion of
the Works carried out by the Defendant. The total
amount payable to the Defendant for the portion of the
Works carried out by the Defendant is Rs.
23,77,72,413.22 including the sales tax. Accordingly, an
amount of Rs. 10,88,10,521.96 is paid in excess to the
Defendant. The Plaintiff demonstrated its bona fides by
making payments on the invoices raised and instruction
provided by the Defendant.
2.3. The plaintiff has issued a legal notice on dated
02.12.2008 to the Defendant demanding the payment
of the amounts due to the Plaintiff along with interest at
the rate of 15% per annum under registered post
acknowledgment due on 02.12.2008, the same has
been duly served to the Defendant. In responce to the
legal notice, the defendant neither made themselves
available for the reconciliation of the financial statement
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COM.O.S.27279/2009
nor refunded to the Plaintiff the amount of Rs.
10,88,10,521.96 paid in excess to the Defendant. On
the contrary, the Defendant made a false claim for a
sum of Rs. 8,17,94,888/- vide its letter dated
16.01.2009, 05.02.2009 and 16.02.2009. On
27.04.2009, the plaintiff received a letter from the
Defendant alleging that a sum of Rs. 27,36,94,620/- is
due from the plaintiff to the Defendant. On 19.05.2009
the plaintiff through its Advocate got issued a letter to
the Defendant to attend the reconciliation process with
supporting documents. The Defendant through its
Advocate got issued a legal notice dated 03.07.2009
wherein it was falsely alleged that the Works performed
by the Defendant was fully reconciled and the
Statement of accounts till the month of October, 2007
was settled by the plaintiff, during the meeting
purported to be held on 03.11.2007 between the
plaintiff and Defendant. It is also alleged that the
plaintiff had agreed to remunerate the Defendant fort
he alleged excess work carried out by the Defendant
beyond the scope of the LOI.
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COM.O.S.27279/2009
2.4. The Defendant alleged that a final completion
certificate was issued by the Plaintiff to the Defendant
and that the Plaintiff was illegally withholding the
legitimate payments to the Defendant. The Defendant
also launched a counter claim against the Plaintiff for a
sum of Rs.27,36,94,620 along with interest @ 15%.
The Defendant also made several baseless and false
allegations against the Plaintiff in the said notice. the
Works at the Site were not completed as on 01.05.2008
on the date of appearing on the said final completion
certificate. The Defendant either managed to fabricate
such a final completion certificate or obtained one
through wrongful means. The Plaintiff in good faith to
resolve the issue between the plaintiff and Defendant
amicably, vide its reply dated 24.07.2009 called upon
the Defendant to attend to the process of reconciliation
of financial statements. On 21.08.2009, the
representatives of the Defendant met with the
representatives of the Plaintiff at the Plaintiff's office in
Bangalore. However, due to the non-cooperative
attitude of the Defendant and its insistence of reconcile
only the accounts as per the Defendant's claim, no
reconciliation was possible during the meeting held on
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COM.O.S.27279/2009
21.08.2009. Thereafter, the Defendant through its
advocate issued a notice dated 02.09.2009 making
several baseless and false allegations against the
Plaintiff in the said notice, the plaintiff has denied all the
allegations made by the Defendant. The Defendant has
acted in a malafide manner, in respect of its dealings
with the Plaintiff. The plaintiff on its part has completely
honoured its commitment under the LOI. The
Defendant is liable to refund a sum of Rs.
10,88,10,521.96 to the Plaintiff. Despite repeated
requests, the Defendant has failed and neglected to pay
the amount legally due and payable to the Plaintiff.
Hence, the plaintiff is constrained to file this suit for
recovery of dues from the Defendant.
3. After service of summons, the Defendant has
appeared and filed written statement under Order VII
Rule 8 of CPC along with Counter claim filed under
Order VIII Rule 6-A of CPC. The Defendant has denied
all the claimed made by the plaintiff is executing the
LOI and amendment of the LOI and also extended the
period. It is also denied that, this court does not have
the territorial jurisdiction to try and hear the case and
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COM.O.S.27279/2009
no par of the cause of action as alleged has arisen
within the territorial jurisdiction of this court.
4. The counter-claim filed by the Defendant stating
that, the suit is engaged in the business of Industrial
and Structural fabrication, erection, engineering, civil
construction and other allied activities. The plaintiff is a
foreign company and not incorporated in India under
the Companies Act. The plaintiff issued a letter of intent
to the Defendant/counter claimant for carrying our
certain works as per the Letter of Intent. The letter of
intent was issued to the Defendant/Counter claimant as
it was already approved as a contractor by the principal
i.e., Hindustan Zinc Limited for which and at whose
establishment Le. the Rampura Agucha Mines, at
District Bhilwara. Rajasthan, the works mentioned in the
LOI were to be carried out. The said letter of intent was
negotiated by the plaintiff and issued, served and
executed at the site and only at the instance of the
defendant merely addressed to its registered office at
Delhi. The said letter of intent constituted an item rate
contract and the prices as mentioned in the BOQ
annexed thereto specified the rates which were to
remain firm and binding for the entire duration of the
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COM.O.S.27279/2009
contract as mentioned in clause 6. The LOI provided the
broad scope of work only as per clause 1.4 of the
contract and did not provide for measurement of such
work even on a estimated basis, as the contract was an
item rate contract. The total order value as the said
limited scope was estimated to be at the time of
issuance of the LOI as Rs. 14,39,31,824.00, however,
the said clause 2.0 amply made it clear that the
contract was an item rate contract and not a lump sum
one when it mentioned in the said clause that "Prices
are inclusive of all taxes duties, levies except cenvatable
service tax and education cess. Detailed BOQ (Bill of
quantities) enclosed." Thus, the purpose of inclusion of
a rate chart for the various works would show that the
contract was an item rate contract and payments were
to be made in accordance with the work done on site by
the defendant/counter claimant. The total order value
was revised on more than one occasions as the scope
and quantity of work increased from what was originally
specified in the said LOI. Thus, value was only
estimated, the actual value of the work done would be
determined by the measurements made and submitted
along with R.A. Bills as per clause 5 of the LOI. Thus, in
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COM.O.S.27279/2009
view of the subsequent correspondence, amendments,
revisions, MOM's (minutes of meeting), the scope and
quantity of work was being periodically revised and
increased from what was actually specified in the LOI, It
is pertinent to mention that after the issuance of the
said LOI, no formal detailed contract document was
ever drawn or executed between the parties, so the said
MOM's, letters, amendments etc, substituted and served
as additional terms and conditions and provisions of the
said LOI.
4.1. In accordance with the terms of clause 5 of the
LOI, the defendant/counter claimant kept submitting its
Running Account Bills for the work actually done on the
site on monthly basis along with the measurement
sheets in the format required by the plaintiff. It is
pertinent to mention that the entire work on the site
was under the supervision and overall control of the
officers of plaintiff including the site in-charge of the
defendant/counter claimant, therefore, the work
actually done was being supervised and measurements
were jointly done and the same were verified at the
time of the submitting of the R.A. bills which were then
certified for the amount billed therein. The terms of
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clause 5 nowhere required that the measurements of
the work actually done on site once made would be
subject to re-measurement on the basis of as built
drawings as that would tantamount to negating the
actual work done by the contract in the entire process
which eventually resulted in the position as built up on
site. The terms of clause 1.2 specifically mentioned inter
alia that, ".as per specifications and drawings supplied
by us from time to time. So, if the work was being
carried out at the site strictly in accordance with
specifications and drawings supplied by the plaintiff
from time to time' leaving scope for the plaintiff to
change, add to or redraw the same or to issue
additional or specific instructions at the site for itself or
for the principal M/S Hindustan Zinc Limited, the
measurement of quantities of actual work done on site
in the process leading to finalized structures and that
based on as built drawings can never be the same.
Thus, the attempt by the plaintiff to seek reconciliation
of measurements of quantities on the basis of as built
drawings would mean that the legitimate claim of the
defendant/counter claimant in terms of actual work
done on site in the process is being deliberately and
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intentionally denied and is motivated by mala fides of
plaintiff. At no point of time has the plaintiff notified the
defendant/claimant at the time of joint measurements
at site and their verification, or at the time certification
of the R.A. Bills for payment that the measurements are
incorrect or that they are not in accordance with the
LOI. Further, the stipulation in clause 5 was never for
reconciliation of quantities but only for final settlement
of 'accounts' at the stage of consideration of the final
bill for payment as the accounts would show whether
any amounts required to be debited towards hire
charges for any equipment, if provided by the plaintiff,
the issue of materials etc. The plaintiff is deliberately
trying to distort and misinterpret the terms of the LOI
to suit its designs motivated by mala fides. The clause 7
of the LOI provided for time as the essence of the
contract but it clarified keeping in view the terms of
clause 14 mentioned hereafter that, in normal
circumstances no extension of period of completion will
be allowed." Therefore, this being an admitted case that
the extension of period were granted on more than one
occasions as the quantity and scope of work was being
periodically enhanced and to ensure the carrying out of
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the same, it was but natural in the circumstances which
were not normal from any point of view to extend the
time. It was with this reason that extensions of time
were granted to the defendant/counter claimant by the
plaintiff also on 06.02.2008. Since no delay was
attributable to the defendant/counter claimant no
liquidated damages as per clause 8 were ever imposed
by the plaintiff on the defendant/counter claimant.
Thus, it is not the case of the plaintiff that the work was
not completed in time. The terms of clause 13.0
pertaining to rates also specified inter alia that, "No
extra claim whatsoever shall be entertained on any
account 'except additional items not covered in BOQ'."
Thus, the LOI provided for claim towards additional
items not covered in BOQ or to say that the LOI
provided for the situation where there is utilization of
additional items not covered in the BOQ. As per the
terms of clause 14.0 pertaining to quantities, it is
clarified that, The quantities given in the Bill of
Quantities are approximate only and these quantities
are liable to alterations by omissions, reductions or
additions to any extent without affecting the rates or
terms and conditions of LOI." Thus, the LOI provided
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inter alia for additions to the quantities as mentioned in
the BOQ. The estimated quantities were also revised
from time to time as borne out from the admissions of
the plaintiff in para 5 of the plaint in the suit.
4.2. As per the terms of clause 15.0 of the LOI
pertaining to Extra items it provided that, "In the event
of any item of work which need to be carried out for the
completion of the work and which is not covered by the
Bill of Quantities and specifications, such an item of
works shall be termed as extra item." Therefore, the
LOI expressly made provision for extra items other than
those mentioned in the BOQ. The letter of intent dated
18.12.2006 also included as its part a Quote Rate Chart
called the Bill of Quantities which mentioned the rates
and prices for the works within the scope of the LOI.
The rates and prices quoted in the said BOQ were
suppose to remain firm and fixed throughout the entire
duration of the LOI. However, the amount or quantity of
work was increased from time to time leading to
addition in the total estimated value of work. So, the
contract was an item rate contract, the total value was
only an estimated value varying according to the actual
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quantity of work carried out by the defendant/counter
claimant under the said LOI. The quantity of work
carried out was duly measured jointly at site under
supervision of the plaintiff when it was executed on
monthly basis for the purposes of verification and
certification of R.A. bills by the plaintiff along with which
the measurement sheets as per the format prescribed
by the plaintiff were submitted. That the plaintiff with a
view to entrust more work and thereby increasing the
scope and quantity of work initially required to be done
as per the estimated value given in the LOI, entered
into a Minutes of Meeting with the defendant /counter
claimant on 30.03.2007 and it bears the signatures of
the officer of the plaintiff Mr. Vaitheeswaran and that of
the representatives of the defendant/counter claimant.
The said MOM over and above the rates quoted in the
BOQ annexed to the LOI allowed for costs for supply,
making and fixing in position of deck sheets @ Rs.
1050.00 per sq.m. and for supply, fabrication &
placement of all supporting structural steel member for
deck sheet @ Rs. 58.00 per kg. and for painting of the
deck sheet & supporting structure from @ Rs. 90.00 per
sq.m. In the same manner it also allowed for additional
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cost for fabrication of built-up sections @ Rs. 7500/- per
MT. In continuation of the aforesaid MOM dated
30.03.2007 another MOM was executed on 11.04.2007
between the plaintiff and the defendant/counter
claimant in the presence of Mr. Vijay Anand, Site in-
charge of the plaintiff and Mr. Vaitheswaran of and the
representatives the defendant/counter claimant for
finalization of rates for items that were not covered in
the BOQ. Thus, the said MOM allowed for dewatering @
Rs. 8960.00 per day and for deployment of survey team
with necessary total station, staff and other instruments
@ Rs. 200,000/- per month. It also provided that since
Hindustan Zinc Limited, the principal and M/S Bateman
were not able to break the rock formation by dynamite
blasting the defendant/counter claimant will deploy
additional Mechanical rock breaker fitted on PC-200
excavator for excavating ground beyond 3.0 metre
depth and for this work the rate allowed was Rs.
1500.00 per cubic meter. Further vide the same MOM
the defendant /counter claimant was to provide the
polycarbonated sheets @ Rs. 1000.00 per sqm for
sheeting work and separate rate for fixing them @ Rs.
600.00 per sqm. And it was agreed by the plaintiff that
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the defendant/counter claimant could raise bill at the
said rates with immediate effect. In continuation of the
aforesaid MOM dated 11.04.2007 another MOM dated
10.07.2007 was executed between the plaintiff and the
defendant /counter claimant in the presence of Mr. Vijay
Anand Site In-charge and Mr. Vaitheeswaran and of the
representatives defendant/counter claimant. The
defendant/counter claimant raise objections with
respect to the practice of making direct payment to
other agencies and debiting that amount to the
defendant/counter claimant as the nature and quantum
of work executed by such agencies was not known to
the defendant/counter claimant. By the said MOM it was
agreed by the plaintiff that the plaintiff shall engage
different agencies to carry out various miscellaneous
works and payment to all such agencies shall be routed
through the defendant/counter claimant as it is not
possible for the plaintiff to issue separate work orders to
such small agencies and that the plaintiff shall
reimburse the amount paid to these small agencies and
the account of all such payments shall be "reconciled"
with the final bill of the defendant/counter claimant. It
was agreed that the plaintiff would provide all the
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details of jobs executed by the said other agencies
directly engaged by them in order to justify the amount
paid to small agencies directly by plaintiff and debited
to defendant/counter claimant to be reimbursed.
However, the plaintiff never provided the details of the
jobs nor gave or shared information as the quantity of
work carried out by them but illegally and unjustifiably
contrary to agreed terms debited the defendant/counter
claimant directly for a sum of Rs. 4,36,37,219/-, for
which neither a reimbursement bill was accepted nor
credit given nor the accounts were reconciled for the
said payments after the submission of the final bill.
Thus, the plaintiff illegally and unlawfully deducted an
amount of Rs. 4,36,37,219/- from the amount due and
payable to the defendant/counter claimant for the work
actually done by it. In continuation of the aforesaid
MOM dated 10.07.2007 another MOM dated 03.11.2007
was executed between the plaintiff and the
defendant/counter claimant in the presence of Mr. Vijay
Anand Site In-charge and Mr. Vaitheeswaran and the
representatives the defendant/counter claimant. By the
said MOM the plaintiff assured and agreed to make
payment of the quantities and value of work that had
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exceeded the LOI quantities and as Clause 14 of the
contract permits the variation to any extent and
accordingly the value of the contract and that the
contract is an item rate contract. Therefore, for all the
work executed by the defendant/counter claimant on
the verbal instruction of the Project Manager of the
Hindustan Zinc Limited and the plaintiff, payment will be
made to them as per the BOQ rate. It was also agreed
and confirmed by the representatives of the plaintiff and
the defendant/counter claimant that the actual work
done has been reconciled and accordingly the running
bills of the defendant /counter claimant were certified
for payment till October, 2007 i.e. until R.A. Bill 10. It
was further agreed that all the deviations in the
drawings released for construction and the additional
work carried out by the defendant/counter claimant on
the verbal instructions of the plaintiff and M/S
Hindustan Zinc Limited shall be certified by Mr. Vijay
Anand and Mr. Vaitheswaran in the measurement book/
progress report. The actual quantities after
deviation/site instruction shall be incorporated in the
running bills of the defendant/counter claimant and it
was confirmed by Mr. Vaitheswaran, the representative
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of the plaintiff that the same had already been for the
work till October, 2007. The certified value of the work
for Rs. 22,46,77,663.00 executed by the
defendant/counter claimant till October, 2007 and the
same being reconciled, there are certain additional work
that was carried out by the defendant/counter claimant
following the instructions from the site engineers and
site incharge of the plaintiff for an amount of Rs. 1.5
crores which has to be paid by the plaintiff and which
was agreed to be paid in accordance with clause 15 of
the LOI. The said MOM also recorded the request of the
defendant / counter claimant for amendment of the
contract due to increase in quantity and value from the
original agreement to which it was confirmed by the
plaintiff that the contract being an item rate contract,
the quantities can increase to any extent as per clause
14 of the contract i.e. the LOI. The said MOM dated
03.11.2007 also provided for the allowing for Rs.
212.00 towards supply of aggregate used for concrete
quantity in excess of the BOQ and since the agreement
required for the execution of the civil work as per the
requirement of the project due to increase in the
aggregate rate. That pursuant to the said MOM, the
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plaintiff issued a letter dated 16.12.2007 whereby the
validity of the LOI was extended up to 28.02.2008.
4.3. Thereafter, during the continuation of the project
as per the terms and conditions of the LOI with
subsequent amendments and the MOM's and letters and
correspondence between the plaintiff and the
defendant, another MOM dated 06.02.2008 was
executed, which discussed various issues pertaining to
the execution of the work at the site and payment to
other agencies. Increase in the quantity work and the
additional work assigned to the defendant/counter claim
over and above and exceeding the quantities and value
given in the LOI, the plaintiff unilaterally once again,
extended the validity of the LOI up to 15.04.2008 vide
its letter dated 06.02.2008. The defendant / counter
claimant raised claim for hire charges of C & S materials
and of Batching Plant with all accessories and for hire
charges of cranes and other equipments for a total
amount of Rs. 2.98 crores vide its letter dated
29.05.2008. However, since now the plaintiff has lost
some documents pertaining to the payment of such hire
charges during the sealing of its registered office by the
Municipal Corporation of Delhi as per the general orders
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of the Hon'ble Supreme Court sealing all commercial
complexes non-designated areas, the
defendant/counter claimant has given up its claim on
that account. Since the entire work assigned to the
defendant/counter claimant pursuant to execution of
the LOI and other additional work within the terms and
conditions of the said LOI had been completed, the
plaintiff issued a letter dated 31.08.2008 to the
defendant/counter claimant to structures immediately
dismantle the constructed by the defendant/counter
claimant for site office/stores and hand over the clear
area to the plaintiff as the defendant/counter claimant
had completed the all the jobs entrusted to
defendant/counter claimant vide various orders received
from the plaintiff and that the defendant/counter
claimant has cleared all labor dues at the site. It also
required that the direction to vacate was to be complied
by 12.09.2008.
4.3. The defendant / counter claimant vide its
letter dated 23.03.2009 raised a claim for idling charges
of Personnel and management and as well as C & S
material for an amount of Rs. 4.34 crores, however,
since now the plaintiff has lost all documents pertaining
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to the payment of such charges during the sealing of its
registered office by the Municipal Corporation of Delhi
as per the general orders of the Hon'ble Supreme Court
sealing all commercial complexes non-designated areas,
the defendant/counter claimant has given up its claim
on that account also. The defendant/counter claimant
carried out the entire work as per the terms and
conditions of the LOI and subsequent additions and
alterations made thereto and was subsequently issued a
Final Completion certificate dated 01.05.2008 by the
site in-charge of the plaintiff whereby the total quantity
of the work was also certified subject to the submission
of the final bill by the defendant/counter claimant. Now
as an afterthought and with malafides the plaintiff is
concocting a story that the said final completion
certificate was never issued, whereas it is an admitted
case that the person issuing the same was a senior
ranking official of the plaintiff company and was a site
in-charge for the said site in question and was
discharging his functions as such during the entire
period. The plaintiff has very cleverly as an afterthought
filed a false and frivolous criminal complaint after the
filing of this suit as a legal device to wriggle out of the
28
COM.O.S.27279/2009
liability to pay the legitimate dues of the
defendant/counter claimant though admitting that the
signatures on the said final completion certificate are
that of their own site in-charge. The plaintiff has no
where been able to establish that the work within the
scope of the defendant was not completed. The plaintiff
is making false,, frivolous and unsubstantiated
averments in the plaint with respect to having got done
some work within the scope of the defendant/counter
claimant by other contractors. The contract being an
item rate contract it is not the case of the plaintiff that
any work actually done by the defendant/counter
claimant for which measurements were made and R.A.
Bills were raised was required to be carried out again by
some other contractor after the completion of the work.
It has never been so pleaded by the plaintiff, therefore,
the entire story is concocted, baseless, false and
frivolous designed merely as defensive measure to
wriggle out of the liability to make payment of the
legitimate dues of the defendant/counter claimant. The
defendant/counter claimant after vacating the site after
completion of the work as per the terms and conditions
of the LOI raised the Final Bill which also duly certified
29
COM.O.S.27279/2009
by the site in-charge as the quantities along with the bill
for additional work in terms of the LOI permitted as per
the MOM's. The final bill of the defendant/counter
claimant along with bill for additional work was for a
total amount of Rs. 44,14,44,369/- (inclusive of service
tax @12.36%) and was submitted with a covering letter
dated 09.04.2009. As a consequence of mutual
understanding certain works at the instance of the
plaintiff were required to be carried out by certain other
petty contractors and one of which being M/S Sumit
Constructions & Earth Movers whose payments were to
be made directly by the plaintiff but who were
designated as the sub-contractors of the
defendant/counter claimant as the said sub-contractors
were neither approved by the principal i.e. Hindustan
Zinc Limited nor by the parent company of the Plaintiff.
However, the plaintiff in perpetuation of fraud and mala
fides after making the payments to such "sub-
contractors" directly without the knowledge of the
defendant/counter claimant debited the said payments
from the payment due to the defendant/counter
claimant. The defendant/counter claimant is not
negating the said mutual arrangement, but before
30
COM.O.S.27279/2009
debiting the said amounts paid directly, the plaintiff
should legitimately and legally give credit for the same
to the defendant or include the said quantity of work in
the measurements of work actually done by the
defendant/counter claimant to enable them to raise
invoice for the same, but strangely enough in
perpetuation of fraud and mala fides the said amount
has been recovered from the amounts due to the
defendant/counter claimant without giving credit for the
same. Therefore, the defendant/counter claimant also
seeks credit for the said recoveries of Rs.
4,36,37,219.00 made from the amounts due and
payable to the defendant/counter claimant as per the
R.A. Bills towards payments made directly to the said
"sub-contractors" to come to the exact figure of the
total amount due and payable to the plaintiff. The
defendant/counter claimant has also carried out certain
additional and extra works in accordance with the terms
of the LOI rates and payments where for were allowed
by MOM's mentioned herein above in the preceding
paragraphs of the plaint. Therefore, the
defendant/counter claimant claims an amount of Rs.
2,53,51,376/- towards additional work for which bill was
31
COM.O.S.27279/2009
duly submitted along with the Final Bill vide letter dated
09.04.2009. The terms of clause 2.0 of the LOI clearly
provided that the prices shall not include service tax
and education cess and therefore, the same had been
levied on the total amount payable to the
defendant/counter claimant. The total amount of service
tax @ 12.36% on the total amount of Rs.
39,28,83,917/- will be Rs. 4,85,60,452 which amount
also is payable to the defendant/claimant. In view of the
above averments the defendant/counter claimant prays
for a decree for a total amount of Rs. 18,98,74,347/-.
The defendant/counter claimant is submitting a
statement of account showing the bills raised along with
final bill, the payments received, and the balance
payments remaining due and payable. The amount was
due and payable after the submission of the final bill on
09.04.2009 therefore, interest @18% per annum is
being claimed on the said amount of Rs. 18,98,74,347/-
from 09.04.2009 until payment or realisation as the
payment of the said amount has been withheld
fraudulently, wrongly and with mala fides.
5. On the basis of the above pleadings, my
predecessor has framed the following issues.
32
COM.O.S.27279/2009
1. Whether the plaintiff proves that, the
Defendant failed to achieve the timely
execution of the Works and also that it
has abandoned the site and left the
'Works' incomplete and that the Plaintiff
company was compelled to incur
significant costs of the Defendant's
Conduct ?
2. Whether the Plaintiff proves that, this
court has jurisdiction to try this suit ?
3. Whether the Defendant proves that
the Plaintiff has no cause of action to
file the suit ?
4. Whether the Plaintiff company is
entitled to decree for sum of Rs.
10,88,10,521.96 paise together with
interest at 15% per annum as claimed
from the Defendant ?
5. Whether the Defendant proves that
it is entitled to the decree for a sum of
Rs. 18,98,74,347/- along with interest
at 18% per annum as claimed from the
Plaintiff ?
6. Whether the Defendant proves that it
is entitled for the decree of costs of the
suit and the counter-claim from the
Plaintiff ?
33
COM.O.S.27279/2009
7. What Decree or Order ?
6. To prove its case, the plaintiff has examined
R.Rajagopalan as a PW1 and relied 147 documents
marked as Exhibit P1 to P147. On the other side, the
defendant has examined Anant Saxena as DW 1 and
relied 26 document marked as Exhibit D1 and Ex.D.26.
7. The Defendant company was admitted into
insolvency on 05.02.2019, which process is still
continuing as against the Defendant. As such, in terms
of Section 14 of the Insolvency and Bankruptcy Act,
2016, from 05.02.2019 a moratorium has been in effect
with respect to any claims against the Defendant,
including the present suit. The Defendant filed an
application in I.A.No.1/2019 seeking stay of suit insofar
as the plaint and permission to prosecute its
counterclaims. The said application came to be
dismissed and the Defendant approached the Hon'ble
High Court in W.P. NO. 20544/2023. By way of order
dated 21.02.2024, the Hon'ble High Court was pleased
to allow I.A. No.1/2019 and directed that only the
counterclaim would continue to be prosecuted. As a
result of the order dated 21.02.2024, the Plaintiff
34
COM.O.S.27279/2009
thereafter sought to file an Additional Written
Statement which was allowed by this court. The
Defendant challenged the said before the Hon'ble High
Court by order dated 27.06.2025 quashed the order
passed by this Hon'ble Court allowing additional Written
Statement to be taken on record and held that the
Plaintiff may rely on averments made in the plaint and
rejoinder to the written statement of the Defendant, in
their defence to the counter-claim. Issue No.5 and 6 are
required to be considered by this court at this juncture.
The claims of the Plaintiff may be kept in abeyance until
such time that the Defendant company is either
removed from insolvency or liquidated.
7. I have heard the arguments of counsel for plaintiff
and counsel for the defendants. On perusing the
pleadings, issues and oral and documentary evidence,
8. My findings on the Issue No. 5 and 6 are as under:
1. Issue No.5 :- In the Partly Affirmative.
2. Issue No.6 :- In the Negative.
3. Issue No.7 :- As per the final Order
for the following reasons.
35
COM.O.S.27279/2009
REASONS
9. Issue No.5 :- The Plaintiff being the Contractor
and Defendant being the sub-contractor had entered
into a Letter of Intent dated 18/06/2006 under the
terms of which Defendant agreed and undertook to
execute and complete civil, structural and steel and
architectural Works would for a proposed expansion of
Ramapura Agaucha Mines Ore Benefication Plant for M/
s.Hindustan Zinc Limited at Bhilwara, Rajasthan. The
Defendant to carry out certain portions of the work
awarded to it by the Plaintiff. Accordingly, the Plaintiff
and Defendant had entered into a Letter of Intent dated
18.12.2006. Accordingly, Defendant had to carry out
civil and structural steel work as per the estimated Bill
of Quantities (BOQ) for various items of work with the
corresponding item rates for each item of work set out
therein. As per the LOI clause 1.1 and 1.2 which
reveals as thus:
1.1 The scope of work generally
comprises of but not limited to structural
/steelwork of the proposed expansion of
Rampura Agucha Mines Ore Beneficiation
Plant including modification required of
existing structure/services for M/s Hindustan
36
COM.O.S.27279/2009
Zinc Limited at Bhilwara Rajasthan.
1.2. The scope of work should include
both civil, structural steel & architectural
work complete in all respects, concreting,
grouting, waterproofing, masonry, building,
plumbing, trenches, basin, roofing.
steelwork, sheeting, dismandling etc and all
related items as per specifications and
drawings supplied by us from time to time
you shall supply all materials and others
specified as per the general conditions of the
contract. You shall also be responsible for
labour, transport loading and unloading and
storage of prom materials, other materials
and tools and all incidental expenditure for
the foregoing including expert supervision.
10. The total order value upon quantity in the LOI
under clause 2 as under:
The total order Value the above-mentioned scope
of work shall be Rs. 14,39,39,31,824.00 (Rupees
Fourteen Crores thirty nine lacs thirty one
thousand eight hundred and twenty four only).
Prices are inclusive of all taxes (Including works
contract tax), duties, they viz except cenvatable
service tax and education cess. Detailed BOQ
enclosed.
37
COM.O.S.27279/2009
11. The mode of payment and terms have been
mentioned in the LOI. It is also mentioned Prices and
rates quoted for all items shall be inclusive of all
charges for supply of materials, transport, loading,
unloading, wastage's, etc., The such clause has
already indicated in clause 13 of the LOI. The extra
items and Approximate quantities are also mentioned.
12. Both the parties have also executed formal
amendments to the Lol. When the scope of the work
was increased with the increased quantities of the
items in the BOQ as per the Good for Construction
Drawings issued by the Plaintiffs and accordingly
corresponding value of contract was increased
proportionately and the time to complete the work was
also extended.
13. The Defendant carried out the work between 2006
and 2008. During such time, the Defendant raised 16
running RA bills for the work done. The Plaintiff also
deposited TDS towards the entire amount of ₹
32,16,41,038/- certified under the 16 RA Bills. The
Defendant completed the work in April 2008 within the
timelines as extended by the Plaintiff from time to time.
38
COM.O.S.27279/2009
The Plaintiff also released Performance Bank guarantee
as security deposit provided by the Defendant, upon
completion of work and successful performance of the
contract. Despite certifying all the bills including Final
Bill of the Defendant, the Plaintiff belatedly claimed that
the Defendant had inflated certain bills and filed the
present suit seeking refund of Rs. 10,88,10,521.96 that
it claimed were wrongly paid to the Defendant. The
Defendant has claimed counter-claim by denying the
plaint averments and sought a relief of recovery of Rs.
18,98,74,347/- and further the interest at 18% per
annum. The amount has been due in respect of
additional work done by the Defendant as certified by
the Plaintiff and the amount certified but paid by the
Plaintiff.
14. On the basis of the pleadings predecessor has
framed 7 issues, out of that Issue No. 1 to 4 is to be
decided on the basis of plaint. However, the Defendant
company was admitted into insolvency on 05.02.2019,
which process is still as against the Defendant. As such,
in terms of section 14 of the Insolvency and Bankruptcy
Act, 2016, from 05.02.2019 a moratorium has been in
effect with respect to any claims against the Defendant,
39
COM.O.S.27279/2009
including the present suit. The Defendant filed an I.A.
No. 1/2019 seeking stay of suit insofar as the plaint.
However, the application came to be rejected and the
Defendant approached the Hon'ble High Court of
Karnataka in W.P. No. 20544 of 2023. Order dated
21.02.2024, the Hon'ble High Court was pleased to
allow IA No. 1/2019 and directed to this court to
proceed with the counterclaim would continue to be
prosecuted. As a result the Plaintiff thereafter sought
to file an Additional Written Statement which was
allowed. The defendant has challenged the said
application before the Hon'ble High Court of Karnataka
in WP. No. 18105/2024. The Hon'ble High Court by
order dated 27.06.2025 quashed the order passed by
this Hon'ble Court allowing additional Written
Statement to be taken on record and held that the
Plaintiff rely on averments made in the plaint and
rejoinder to the written statement of the Defendant.
Under Such Issue No. 5 and 6 are required to be
considered by this court.
15. The Defendant has sought for an amount of Rs.
18,98,74,347/- along with interest at 18% per annum
40
COM.O.S.27279/2009
as calculated below:
S.No Particulars Amount in Rs.
1. Regular work as per R.A.Bills 32,38,95,322/-
2. Additional work as per LOI 2,53,51,376/-
rates
3. Recoveries by Bateman 4,36,37,219/-
towards amount directly paid
to other contractors
4. Total (1+2+3) 39,28,83,917/-
5. Service Tax @ 12.36% 4,85,60,452/-
6. Total (4+5) 44,14,44,369/-
7. Total amount received/paid 25,15,70,022/-
8. Net claimed and unpaid (6-7) 18,98,74,347/-
16. The amount certified by the Plaintiff but not paid
and additional work done by the Defendant in terms of
the LOI. The Defendant has submitted RA Bills No. 1 to
16 and the bills have been certified by the Plaintiff
along with documents, measurement sheets were
submitted. The Plaintiff in his written arguments as
stated that, the LOI was not in the nature of an item
rate contract, and that the same is, in any case,
irrelevant for the purpose of the suit and the Counter-
41
COM.O.S.27279/2009
Claim. Clause 1 of the LOI speaks about the scope of
work as per the Clause 1 was an item rate of contract.
It is also noted point that, the plaintiff has taken a
contention that, the RA bills on record are fabricated.
The RA Bill No.1 has been certified, the representative
of the Plaintiff. The RA Bill No. 1 to 10, in minutes of
the Meeting 03.11.2007 signed by the representative of
the plaintiff. The RA Bill No. 11 to 16 raised from
December 2007 to May 2008 for the work done in last 6
months of the extended contractual period from
November 2007 to April 2008. The bills have been duly
certified by the placement as raised by the Defendant.
The plaintiff has also released the amount in every
month. The same certification and payment has been
referred in Ex.D.9 by the plaintiff. The monthly
payments also mentioned in cross-examination of Dw.1
in question No. 16 and 17 stated as thus:
Q: Attention drawn to Ex.P.1, clause 5, It is
correct to suggest that monthly payments
were to be considered as and advance to be
certified by the placement during final
settlement of accounts and not as payments
for work completed and passed ?
A: It is correct to say that, Plaintiff have made
42
COM.O.S.27279/2009
advance payment against the certified bills
and not released an entire certified amount as
per the values of bills/ certified measurement.
Thus the payment release against the certified
bills advance payment against those bills.
Q: So it is correct to suggest that RA bills
were first verified at the site by the Plaintiff
and Defendant before forwarding the same for
payment ?
A: Yes, it is correct to say that, the bill
certified based on certified measurement
sheet by the Plaintiff were processed for
payment after due verification and
certification.
17. In question No. 16 and 17 of DW.1 which clearly
goes to shows that, the Defendant has raised the bills
and the placement has certified all the bills, but not
paid the complete amount comes under the bill.
Therefore, at the time of certifying the bill, the plaintiff
has not raised about the fabrication of the bills. Hence,
the contention of the fabrication of the RA bills does not
survive for consideration. The LOI is item rate of
contract as RA bill is greater than the contract value
specified in the LOI, anything above and beyond the
said amount cannot be paid, since the contract is said
43
COM.O.S.27279/2009
to be a fixed rate contract. The value of the contract is
derived from the Sum of Quantity of various items in
the BOQ Multiplied by the corresponding Item Rate
quoted for each BOQ item respectively and this BOQ &
Item Rates forms part of the Contract/LOI.
18. Thus with the change in the Quantity of any item
of BOQ will affect the Contract Value and accordingly
Value of Contract was increased with increased quantity
of items in the BOQ which was duly admitted by the
Plaintiff by issuance of amendments and certifications
of the bills with the increased quantity of items of BOQ.
All the Bills of Defendant were also certified for
payment by Plaintiff according to the item rate contract
and the item rate per unit (which remained constant) &
the BOQ (which increased to many folds) concept was
never disputed by any party till completion of the
contract and certification of all the bills including the
final bill. The Lol itself provides for increase in contract
value. Clause 13 and 15 deal with rates and extra
items. Clause 13 specifically provides that extra claims
can be made for items not covered in the BOQ. Further,
Clause 15 provides the procedure for making a claim
for any work items not covered by the BOQ. Clause 14
44
COM.O.S.27279/2009
deals with the increased quantity of items in the BOQ
and accordingly the contract value also Increases in
proportionate to the increased BOQ. The quantities in
the BOQ were approximate and were liable to change to
any extent. Clause 14 of the Lol further says that the
item unit rate quoted shall remain same even with the
increase in the quantity of work and that is how the
contract value increased to more than doubled with the
increase in the BOQ quantities based on the Good for
Construction Drawings provided by the Plaintiff.
19. The Good for Construction Drawings were in the
scope of the Plaintiff and the quantities of work /items
were worked out and executed and at project site by
the Defendant based on the Good for Construction
Drawings provided by the Plaintiff time to time and
accordingly quantities of various items were certified by
the Plaintiff on monthly basis for the bills raised by the
Defendant. Even the final bill of the Defendant was
certified at site by the Plaintiff based on these Good for
Construction drawings and the quantities of BOQ items
therein. The increased quantity of items in BOQ and
proportionately increase in the value of contract
(Quantity of any BOQ Item X Its Corresponding Unit
45
COM.O.S.27279/2009
Item Rate Value of the Item) was duly acknowledged
and certified by the Plaintiff and was captured in the
monthly RA BILLS and Amendments/MOM signed by
the Plaintiff. It is also noted point that as per the clause
LOI the bills are to be prepared as per the
measurement sheets for the better convenience extract
clause 5 of LOI as under :
Clause 5 : Payment terms : You shall
normally be paid once in a month as per the
certified running bill. Payment so paid to you
shall be considered as an advance to be certified
by us during the final settlement of accounts
with you and not as payment for work
completed and passed.
You shall submit five copies of the bills and
three copies of the measurement sheets in the
format required by us.
20. Clause 2 of the LOI refers to price in the BOQ
which means various item rates for different item in the
BOQ. The value of the Ex.P.1 contract was neither an
arbitrary round off figure nor a lumpsum value but the
value of the contract was derived from summing of the
product of estimated quantity of each item. The rates
have been quoted by the contractor as mentioned in
46
COM.O.S.27279/2009
clause 3 of the Ex.P.1.
21. The Defendant has agreed that the payments
were made against measurement of quantities of
various items of BOQ. If the payments are being made
against measurement of items, then naturally it means
that it is an itemized contract. It cannot be a fixed
lumpsum contract. The item rates contract have been
quoted as per clause 13 and 15 of Ex.P.1. The Defeated
has completed the work as admitted by the Plaintiff.
22. The defendant has relied Ex.D.11 for final
completion certificate issued by the plaintiff. However,
the plaintiff has taken a contention that, the Defendant
as being forged and fabricated certificate. Ex.D.3 to
Ex.D.6 have been singed by the Plaintiff. But the
plaintiff also admitted the RA Bills, the plaintiff has not
lead any evidence to disprove the signature of the Vijay
Anand on RA bills. Mr. Vijay Anand being the employee
of the plaintiff until, has deliberately been kept out of
the witness box and he was not cross-examined in the
case. When the Plaintiff himself as taken a contention
that, the signature in final completion certificate is
47
COM.O.S.27279/2009
fabricated but he should not examined the witness.
Therefore, this court can take an adverse inference
against the Plaintiff.
23. As per Ex.D.11 is issued by the Defendant, the
Plaintiff has also released the performance bank
guarantee submitted by the Defendant in terms of
Clause 5B of the Lol (Ref. Evidence Affidavit of DW-1, at
Para 24). The evidence given by DW-1 in this regard is
unchallenged and DW-1 was not subjected to any
cross-examination by the Plaintiff in this regard and
ought to be believed by this Court. In terms of Clause
5B, the said guarantee would only be released upon
completion of work. The performance bank guarantee is
a security that is given to the Plaintiff to insure it
against the possibility of non-performance or delay by
the Defendant.
24. Under established practice, issuance of a
completion certificate and release of security
deposits/Performance Guarantee signify acceptance of
final measurements and extinguish the employer's right
to dispute quantities & final value of the work. No
rational commercial party would release a security in
48
COM.O.S.27279/2009
the absence of complete and satisfactory performance.
The Defendant did not complete the work, etc., the
Plaintiff never made any deductions to the bills
submitted by the Defendant. Clause 8 of the Lol
explicitly permits the Plaintiff to impose up to 10% of
the contract value towards liquidated damages in the
event that the work was not completed within the
stipulated period. No liquidated damages or any
recoveries towards incomplete work or Non
Performance were ever imposed by the Plaintiff, nor
was any claim made even in the present suit. Even in
the demand notice from the Plaintiff dated 02.12.2008
(Ex. P-5), issued prior to the filing of the present suit.
no reference is made to imposition of liquidated
damages or recoveries on that account. Having so
acted in the above manner, the Plaintiff is estopped
from claiming that the Defendant never completed the
work. The defendants carried out and completed the
work in April 2008 within the revised timelines as
extended by the Plaintiff which is evidenced by the last
RA Bill No. 16 (Exhibit P-114) raised by the Defendant
in May 2008 and was duly certified by the Plaintiff and
adhoc payment against this bill was also released to the
49
COM.O.S.27279/2009
Defendant.
25. The plaintiff has taken a contention that, the
Plaintiff has paid all the contractor cumulatively
Rs.7,10,20,561/- and on-site payments of Rs.
1,56,209,171/-. The Defendant has answer to the
question No. 71 as thus:
Q: I put it to you that the plaintiffs paid all the
contractor cumulatively Rs. 7,10,20,561/- and
also made onsite payments of Rs.
1,56,209,171/- for completion of the work
which were within the scope of the Defendant ?
A: It is wrong to say that the Plaintiff made
payments against the scope of the Defendant.
26. It is also denied by the DW.1 that value of claim
as on 06.05.2008 for RA Bills 11 to 16 was Rs.
7,76,90,000/-. It is also derived that, when the
Defendant has claimed not changed as Rs.
8,17,94,888/-. The Defendant revised the claim amount
after receipt of legal notice issued on behalf of the
Plaintiff. The amount has been raised by the Defendant
as the plaintiff has paid without the instruction of the
Defendant though it is beyond the LOI. The scope of
50
COM.O.S.27279/2009
work has been defined under the LOI as per Ex.P.1.
Q.115.Was the entire scope of work defined
under the LOI. i.e, ExP1?
A. Yes and also as per the amendments.
Q.116. I put it you that as per clause 1.4 of the
LOI only broad scope of work was provided and
not the entire scope.
A. I deny that, The complete scope is set out,
Please see clause 1.0.
Q.117. I put it to you that the measurements for
the broad scope of work was given on an
estimated basis.
A. Yes it is based on the approximate quantities
a mentioned in the contract.
Q.120. Did you engage any sub-contractors for
execution of work apart from the Defendant ?
A. Yes.
Q.124. Whether measurements were carried out
as regards the work carried out by the
subcontractors?
A. Yes. It is the part of the work of the
Defendants.
27. As per the entire scope of the work has been
51
COM.O.S.27279/2009
defined in Ex.P.1 Clause 1.1 and Clause 1.2. However,
there is no any work assigned to the other contractor
other than defendants. Though the PW.1 has admitted
and specifically stated that, the Defendant has role in
work done by the sub-contractor and payment made by
the sub-contractor and it was part of the agreed scope
of the work done by the Defendant. But, there is no any
clause to specify that the plaintiff is liable to pay the
amount to the sub-contractor other than the
Defendant. The plaintiff has not issued any separate
work order or LOI's to the other sub-contractor as
stated in question No. 121. The PW.1 answer to the
Question No.121 as which is not in knowledge. When
the PW.1 does not have any knowledge. The Defendant
has not completed the work he has to engaged other
sub-contractor to finish the work. Such work is beyond
the scope of Ex.P.1. Therefore, the payment made by
the Plaintiff which is beyond the scope of the work.
28. It is also submitted by the Defendant that, the
Plaintiff has also released the performance bank
guarantee submitted by the Defendant in terms of
Clause 5B of the LOI. The evidence given by DW.1 in
this regard is unchallenged and DW.1 was not subjected
52
COM.O.S.27279/2009
to any cross-examination by the Plaintiff in this regard
and ought to be believed by this court. In terms of
clause 5B, the said guarantee would only be released
upon completion of work. The performance bank
guarantee is a security that is given to the Plaintiff
insure it against the possibility of non-performance or
delay by the Defendant. Once the plaintiff has released
the security deposit/Performance guarantee signify
acceptance of final measurement and extinguish the
employer's right to dispute quantities and final value of
the work. The Plaintiff never made any deductions to
the bills submitted by the Defendant and clause 8 of
the LOI explicitly permits the plaintiff to impose up to
10% of the contract value towards liquidated damages
in the event that the work was not completed within
the stipulated period. No liquidated damages or any
recoveries towards incomplete work or Non
performance were ever imposed by the plaintiff. The
Defendant has claimed amount as per LOI and BOQ and
work submitted as per RA bills and final bill with built
drawings of the plaintiff.
29. It is also noted point that, the plaintiff certified the
53
COM.O.S.27279/2009
final bill of the Defendant raised in May 2009,
considering the actual quantity as certified by the
Plaintiff on month to month basis executed from
December 2006 to April 2008. Once the running
account bills and final bill already been duly certified by
the Plaintiff as per Ex.D.15. The Defendant was run his
work as the drawing supplied by the Plaintiff in terms of
Clause 1.2 of the LOI, of Ex.P.1 thus the Plaintiff cannot
claim that it is seeking to certify the work on the basis
of as Built drawings, which are prepared post facto and
do not reflect the good for construction drawings.
30. The Defendant has also done additional work as
submitted under final bill. The Defendant was also
required by the Plaintiff to carry out certain additional
items of work which were not included in the original
BOQ. These items of work performed at the request of
the Plaintiff and in expectation of remuneration under
the LOI, has been set out in the minutes of meeting
between the parties as per Ex.D.9.
31. Ex.D.9 which is held on 06.05.2008 at 3.00 PM at
Batemen India site office. In clause 3 of the Minutes of
meeting clarifications sought by B1 for RA bills No.
54
COM.O.S.27279/2009
11,12 and 13 (if required) shall be furnished by M/s
DCPL for finalization of payments. When the Minutes of
meeting also between both the parties have been
completely objected and payment has been finalized.
Clause 4 of the Ex.D.9 reads as thus:
In order to facilitate completion of work,
Bateman India shall be making the following
adhoc payment of M/s DCPL on submission of
Jan 08 Bills on 07.02.2008 which also includes
payment towards of extra claim towards
aggregates.
(1) Rs. 1 Crore : on 08.02.2008.
(2) Rs. 75 Lacs on 12.02.2008.
(3) Over and above, approx Rs. 51 Lacs shall
be released to various vendors (Medha
Constructions, Gautam Lodha, DH Kutty,
Shivede Engineering, Aren Rocktech, Shahrukh
Constructions, Dayal Engineering, Bijasan
Enterprises etc.) directly by BI in behalf of M/s
DCPL as per the prevailing practice.
32. In view of the above clause that the defendant is
permitted to additional work. Therefore, the Defendant
is entitle for the recovery of additional work as per
Ex.D.9. The additional work done by the Defendant was
also verified by the site engineer of the plaintiff and
55
COM.O.S.27279/2009
measurement and other data have also been certified
by the representative of the Plaintiff which were
submitted along with final bill marked as Ex.D.9.
33. It is also noted point that, as per Ex.D9 clause 5,
the payments referred shall clear all liabilities of site
related sub-contractors and vendors and arrange to
supervise smooth and safe operations of site work by
M/s DCPL. As per the clause there is no provision to
pay by the Plaintiff to sub-contractor. Therefore, the
Defendant is entitle for the payment of Sub-contractor
work assigned as per LOI.
34. The Defendant has claimed service tax from the
Plaintiff as per the table furnished (supra) as service
tax @ 12.36% for the rate of Rs. 4,85,60,452/-. The
clause has been mentioned in the Ex.P.1 about the
payment of tax clause 2 reads as thus:
The total order value for above mentioned
scope of work shall be Rs. 14,39,31,824. Prices
are inclusive of all taxes(including works
contract tax), duties, levies, except cenvatable
56
COM.O.S.27279/2009
service tax and education cess.
35. In accordance with clause 2 the Plaintiff is liable
to pay service tax as claimed by the Defendant. Hence,
the Defendant is entitle for the payment of tax as
mentioned (supra).
36. The Defendant has claimed Recoveries by
Bateman towards amount directly paid other contracts.
However, the work mentioned by the Defendant the RA
bills have mentioned as Rs. 32,38,95,322/-. But the
Defendant have not produced any iota of documents
that the defendant has claimed Rs. 4,36,37,219/-
without the proper bill raised by the Defendant
claiming the above mentioned amount is not entitled.
Furthermore, the defendant has raised RA bills, but
they have not pleaded that, the said sub-contractor bill
as the Defendant paid apart from the amount
mentioned in RA Bills. Without proper accounts as
calculated for Rs. 4,36,37,219/- is not entitle. Hence,
the recoveries of Bateman towards amount directly paid
to other contractor is claimed by the defendant is not
entitled.
57
COM.O.S.27279/2009
37. The Defendant is not entitled to cost under
Section 35 of CPC, the successful party is ordinarily
entitled to costs as per Ex.P.1 clause 3 the tax should
be paid by the Plaintiff only.
38. As per the Ex.P.2 the completion date of work is
100% before 30.11.2007 all other terms and conditions
are referred LOI dated 18.12.2006 shall remain
unaltered. However, as per Ex.D.11 final completion
certificate has been issued on 01.05.2008 and the date
of completion of work as not yet been mentioned in the
final completion certificate. Therefore, the defendant
has not completed his work on or before 30.11.2007.
Hence, the Defendant will not entitle for the exemplary
cost as prayed in the counter-claim. Therefore, in view
of the observation I answer Issue No. 5 in
Affirmative and Issue No.6 in Negative.
39. Issue No.7 : -Therefore, I proceed to pass the
following Order.
ORDER
The counter-claim of the Defendant 58 COM.O.S.27279/2009 is hereby decreed in part.
It is hereby directed the Plaintiff to pay Rs. 14,62,37,128/- with interest at 18% per annum from the date of counter-claim till its realization.
The claim of the Plaintiff would be adjudicated subject to Company Petition No. (IB) 694 (PB)/2018 pending before NCLT.
Draw Decree accordingly.
The Office is directed to send copy of this Judgment to Plaintiff and Defendant to their email ID as required under Order XX Rule 1 of the Civil Procedure Code as amended under Section 16 of the Commercial Courts Act.
(Dictated to the Stenographer, typed by her, verified and corrected by me and then pronounced by me in open Court on this the 27th day of November, 2025).
(VIDYADHAR SHIRAHATTI), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF 59 COM.O.S.27279/2009 PW-1 Rajagopalan LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P1 Letter of Intent dt.18.12.2006 Ex.P2 Amendment No.1 to Letter of Intent dt.12.9.2007 Ex.P3 Amendment No.2 to Letter of Intent dt.16.10.2007 Ex.P4 Amendment No.3 to Letter of Intent dt.21.11.2007 Ex.P5 Legal notice dt.2.12.2008 Ex.P6 Postal receipt dt.2.12.2008 Ex.P7 Letter dt.16.1.2009 Ex.P8 Letter dt.5.2.2009 Ex.P9 Letter dt.16.2.2009 Ex.P10 Letter dt.27.4.2009 Ex.P11 Letter dt.19.5.2009 Ex.P12 Postal receipt dt.19.5.2009 Ex.P.13 Journal Voucher dated 23.2.2007. Ex.P.14 History Sheet issued by plaintiff dated 23.2.2007.
Ex.P.15 Invoice dated 10.2.2007. Ex.P.16 Bill approved sheet dated 19.2.2007. Ex.P.17 Bill dated 10.2.2007. Ex.P.18 Work measurement sheet format running account/final bill. (12 sheets ) Ex.P.19 Letter from defendant dated 6.2.2007 along with running account. ( 11 sheets) Ex.P.20 Plaintiffs Journal voucher dated 23.3.2007. Ex.P.21 Summary issued by plaintiff of excess quantity certified against work order. Ex.P.22 Bill approval sheet dated 14.3.2007 60 COM.O.S.27279/2009 ( 2sheets) Ex.P.23 Work measurement sheet of running account No.2. ( 21 sheets ) Ex.P.24 Plaintiffs journal vouchers dated 30.4.2007.
Ex.P.25 Bill approved sheet dated 26.4.2007. Ex.P.26 Bill process sheet issued by defendant dated 18.12.2006.
Ex.P.27 List of deductions issued by defendant and recovery sheets. (8sheets ) Ex.P.28 Summary of bills passed and measurement issued by plaintiff.
Ex.P.29 Work measurement sheet format as running account/final Bill. ( 4 sheets) Ex.P.30 Letter dated 31.3.2007 issued by defendant along with running account bill No.3. ( 2 sheets) Ex.P.31 Running account bill no.3- bill of quantities. Ex.P.32 Journal voucher dated 31.3.2007. Ex.P.33 History sheet issued by plaintiff. Ex.P.34 Invoice No.3 dated 31.3.2007 along with bill quantities and abstract measurement. Ex.P.35 Letter issued by plaintiff to defendant dated 5.4.2007.
Ex.P.36 Letter dated 31.3.2007 from plaintiff to the to 40 defendant. (5) Ex.P.41 Letter dated 23.3.2007 from plaintiff to the defendant with attachment.
Ex.P.42 Letter dated 31.3.2007 from plaintiff to the to 44 defendant (3) Ex.P.45 Bill approval sheet dated 26.4.2007 issued by plaintiff.
Ex.P.46 Bill approval sheet dated 1.3.2007 to 31.3.2007 issued by defendant. Ex.P.47 List of deduction issued by defendant.
( page 238 to 248) Ex.P.48 Bill passed status and measurement.
61COM.O.S.27279/2009 Ex.P.49 Work measurement sheet format- running account/ final bill ( page250 to 253) Ex.P.50 Letter with bill invoice dated 31.3.2007.
( page 255 to 256 ) Ex.P.51 Bill of quantities/ obstruct measurement ( pages 257 to 285) Ex.P.52 Journal voucher dated 10.5.2007. Ex.P.53 Bill approved sheet dated 26.4.2007. Ex.P.54 Bill/ Invoice dated 23.5.2007 issued by defendant . ( pages 288 to 289) Ex.P.55 List of details of payment made plaintiff on behalf of defendant.
Ex.P.56 Deduction/ recovery sheet and compliance cheque list ( pages 294 to 309) Ex.P.57 Employees PF challans of account No.1,2,10,211 and 22. ( pages 310 to 313) Ex.P.58 Obstruct measurements. ( pages 314 to
354) Ex.P.59 Journal voucher issued by plaintiff dated 16.7.2007. (( pages 355 & 356) Ex.P.60 Bill approval sheet dated 30.6.2007 issued by plaintiff Ex.P.61 Deductions/recovery sheet along with compliance cheque list. ( Page 358 -361) Ex.P.62 Bill/Invoice dated 23.6.2007 (362) Ex.P.63 Work measurement sheet format - running account ( 363- 367) Ex.P.64 Bill invoice dated 23.6.2007. ( 368 - 403) Ex.P.65 Bill approval dated 25.7.2007 (410) Ex.P.66 Bill invoice dated 30.6.2007 (411) Ex.P.67 Work measurement sheet format - running account ( 412-415) Ex.P.68 Letter dated 30.6.2007 issued by plaintiff regarding the payment made on behalf of defendant (414) Ex.P.69 Letter dated 23.7.2007 issued by defendant 62 COM.O.S.27279/2009 to plaintiff for advance payment. (417) Ex.P.70 Deductions/recovery sheet along with compliance cheque list. (418-422) Ex.P.71 Bill invoice dated 30.6.2007 issued by defendant (423-450) Ex.P.72 Employees PF organization Challans number account No.1,2,10,211,22 (451 -
513) Ex.P.73 Journal voucher dated 24.8.2007 issued by plaintiff (514) Ex.P.74 Bill invoice dated 3.8.2007 issued by defendant for running account bill 7 ( 515) Ex.P.75 Bill approval sheet dated 4.9.2007 issued by plaintiff for running account Bill NO.7 ( 516) Ex.P.76 Bill/ Invoice dated 31.7.2007 issued by defendant for running account Bill no.,6 along with work measurement sheet format
-running account ( 517 -524) Ex.P.77 Bill/ Invoice dated 3.8.2007 issued by defendant for running account Bill no.6 along with work measurement sheet format
-running account ( 525-555) Ex.P.78 Journal voucher dated 5.9.2007 issued by plaintiff.
Ex.P.79 Bill/Voucher dated 31.8.2007 issued by defendant.
Ex.P.80 Bill approval slip dated 13.9.2007 issued by plaintiff for running account Bill No.8. Ex.P.81 Compliance of cheque list. Ex.P.82 Bill/Invoice dated 31.8.2007 issued by defendant for running account bill no.8 with work measurement sheet.
Ex.P.83 Employees PFO Fund Organization challans of account no.1,2,10,211,22. Ex.P.84 Statement of expenses incurred for and on behalf of defendant.
63COM.O.S.27279/2009 Ex.P.85 Bill/invoice dated 31.8.2007 issued by defendant for running account bill no.8 along with bill of quantities and details. Ex.P.86 List of employees/workers and amount details.
Ex.P.87 Journal voucher dated 30.9.2007 issued by plaintiff Ex.P.88 Bill /invoice dated 31.8.2007 issued by defendant for running account bill no.9 Ex.P.89 Bill approval sheet dated 31.10.2007 issued by plaintiff Ex.P.90 Bill/invoice dated 30.9.2007 issued by defendant for running account bill no.9 .
Ex.P.91 Employees PFO and fund organization combined challans of account No.1,2,10,211,22.
Ex.P.92 Bill/invoice dated 30.9.2007 issued by defendant for running account bill no.9 with bill of quantities.
Ex.P.93 List of employees/workers and amount details.
Ex.P.94 SBI bank payment voucher dated 8.2.2007. Ex.P.95 Bill/invoice dated 6.12.2007 issued by defendant for running account bill no.11 with bill of quantities.
Ex.P.96 Ledger account extract for the period between 1.4.2007 to 31.12.2007. Ex.P.97 Bill approval sheet dated 21.11.2007 issued by plaintiff for running account bill no.10. Ex.P.98 Ledger account extract for the period between 1.10.2007 to 31.10.2007 issued by plaintiff Ex.P.99 Bill/invoice dated 30.9.2007 issued by defendant for running account bill no.10 with work measurement sheet format- running account bill and compliance of 64 COM.O.S.27279/2009 cheque list Ex.P.100 Employees PF organization and combined challan of A/c No.1,2,10,211,22. Ex.P.101 Bill/ Invoice dtd.31.10.2007 issued by defendant for running account bill No.10, Bill of quantities, Billing and measurement details Ex.P.102 Bill of quantities, Billing and measurement details for running bill No.11. Ex.P.103 Bill of quantities, Billing and measurement details of running bill No.12. Ex.P.104 Bill / Invoice dtd.06.12.2007 issued by defendant for running account bill No.12 Ex.P.105 Bill / Invoice dtd.06.12.2007 issued by defendant for running account bill No.11 Ex.P.106 Letter dtd.18.01.2008 issued by defendant. Ex.P.107 Bill/ Invoice dtd.07.02.2008 issued by defendant for running account bill No.13, Bill of quantities, Billing and measurement details Ex.P.108 Bill/ Invoice dtd.02.03.2008 issued by defendant for running account bill No.14, Bill of quantities, Billing and measurement details Ex.P.109 Bill/ Invoice dtd.02.03.2008 issued by defendant for running account bill No.14, Bill of quantities, Billing and measurement details Ex.P.110 Bill/ Invoice dtd.02.03.2008 issued by defendant for running account bill No.15, Bill of quantities, Billing and measurement details Ex.P.111 Bill/ Invoice dtd.04.04.2008 issued by defendant for running account bill No.5 Ex.P.112 Statement of payment dtd.07.05.2008 of payments made on behalf of Defendant Ex.P.113 Letter dtd.06.05.2008 issued by defendant 65 COM.O.S.27279/2009 for relies of interim payment Ex.P.114 Bill/ Invoice dtd.06.05.2008 issued by defendant for running account bill No.16 along with bill of quantities, abstract of measurements Ex.P.115 Reconciliation statement prepared by plaintiff Ex.P.116 9 volumes of as built drawings. Ex.P.117 Bank statement of SBI in one volume consisting of page Nos.1 to 179. Ex.P.118 Bank statement of HDFC in one volume consisting of page Nos.1 to 126. Ex.P.119 E-mail print out dated 12.04.2007 sent by Mr.Bannur Sudhakara General Manager Projects of plaintiff company to Mr.Ananth Saxena of defendant company (page Nos.6 and 7).
Ex.P.120 Printout of e-mail dated 27.05.2007 along with three photographs sent by Mr.H.K.Batra of Hindustan Zinck Ltd., to Mr.Bannur Sudhakara General Manager Projects of plaintiff company and Mr.Ananth Saxena of defendant company (page Nos.8 and 10).
Ex.P.121 Printout of email dated 23.04.2007 sent by Mr.John A. Louis to Mr.Anil Dhar and Mr.Ananth Saxena of defendant company (page No.11).
Ex.P.122 Printout of email dated 24.04.2007 sent by Mr.John A. Louis to Mr.Anil Dhar and Mr.Umashankar Jha of defendant company (page No.12).
Ex.P.123. The E-mail print out dated 23.05.2007 Ex.P.124. The E-mail print out dated 19.05.2007 Ex.P.125. The E-mail print out dated 17.05.2007 Ex.P.126. The E-mail print out dated 01.04.2007 Ex.P.127. The E-mail print out dated 19.06.2007 66 COM.O.S.27279/2009 Ex.P.128. The E-mail print out dated 24.09.2007 Ex.P.129. The E-mail print out dated 26.09.2007 Ex.P.130. The E-mail print out dated 22.01.2008 Ex.P.131. The E-mail print out dated 19.06.2007 Ex.P.132. The E-mail print out dated 17.06.2007 Ex.P.133. The E-mail print out dated 15.03.2007 Ex.P.134. The E-mail print out dated 25.08.2007 Ex.P.135. The E-mail print out dated 07.08.2007 Ex.P.136. The E-mail print out dated 06.08.2007 Ex.P.137. The E-mail print out dated 19.04.2007 Ex.P.138. The E-mail print out dated 18.04.2007 Ex.P.139. The E-mail print out dated 24.12.2007 Ex.P.140. The letter print out dated 22.09.2007 Ex.P.141. The letter print out dated 05.10.2007 Ex.P.142. The letter print out dated 06.12.2007 Ex.P.143. The letter print out dated 04.01.2008 Ex.P.144. The letter print out dated 08.02.2008 Ex.P.145. The letter print out dated 02.03.2008 Ex.P.146. The letter print out dated 05.03.2008 Ex.P.147. The certificate of incorporation print out dated 24.04.2018 LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT DW.1 Anant Saxena LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT Ex.D.1 Board resolution.
Ex.D.2 Letter of Authorization. Ex.D.3 Copy of Minutes of meeting dated 30.03.2007.
67COM.O.S.27279/2009 Ex.D.4 Copy of Minutes of meeting dated 11.04.2007.
Ex.D.5 Copy of Minutes of meeting dated 10.07.2007.
Ex.D.6 Copy of Minutes of meeting dated 03.11.2007.
Ex.D.7 Office copy of letter dated 16.12.2007. Ex.D.8 Coy of letter dated 16.12.2007. Ex.D.9 Copy of Minutes of meeting dated 06.02.2008 Ex.D.10 Copy of letter dated 06.02.2008 Ex.D.11 Copy of final completion certificate. Ex.D.12 Copy of letter dated 29.05.2008. Ex.D.13 Copy of letter dated 31.08.2008. Ex.D.14 Office copy of letter dated 23.03.2009. Ex.D.15 Office copy of letter dated 09.04.2009. Ex.D.16 Office copy of letter dated 27.04.2009. Ex.D.17 Office copy of letter dated 03.07.2009. Ex.D.18 Photocopy of UPC receipt and postal receipt Ex.D.19 Office copy of letter dated 02.09.2009. Ex.D.20 Office copy of letter dated 05.10.2009. Ex.D.21 Photocopy of postal acknowledgment. Ex.D.22 Office copy of letter dated 13.01.2010. Ex.D.23 Summary statement of account along with annexure -1 and 2.
Ex.D.24 Summary of monthly running account. Ex.D.25 E-mail communications. Ex.D.26 Certificate U/s 65b of Indian Evidence Act.
(VIDYADHAR SHIRAHATTI), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.